Lawyers for state, cities clash over open meetings penalties

Updated 10:35 pm, Thursday, April 5, 2012

Criminal penalties stemming from violations of the state open meetings law have had a "chilling effect" on free speech, an attorney representing public officials from several Texas cities told appeals court judges Thursday.

But attorneys for the state argued the Texas Open Meeting Act, which generally requires that governmental bodies open their meetings to the public, has the opposite effect. They said the penalties are necessary to ensure government transparency.

The arguments before the 5th U.S. Circuit Court of Appeals mark the latest chapter in a legal effort to overturn part of the state's open meetings law. A violation carries a penalty of up to six months in jail and a fine of up to $500.

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Craig Enoch, an attorney representing the city officials, told the three-judge panel that fear of criminal sanctions suppresses free speech by public officials. He called the law overly broad and unconstitutionally vague.

"When you have criminal sanctions, you have the grave harm of self-censorship," Enoch said.

Requiring disclosure

Attorneys for the state said the law is narrowly tailored and only applies to a quorum of a governmental body discussing public business. Sean Jordan, principal deputy solicitor general for Texas Attorney General Greg Abbott, called the law "straightforward, reasonable and understandable."

Its purpose, he said, is not to curtail free speech by elected officials, but to require the disclosure of that speech to the public.

"These laws are designed to ensure government officials don't get into a practice of deliberating in private," Jordan said.

Judge Leslie Southwick said there was some validity to Enoch's First Amendment argument.

"This truly can be seen as prohibiting certain kinds of speech," said Southwick, citing conversations that officials may not be willing to have in public.

2 judges skeptical

Judge Jerry Smith noted that the law was designed to prevent decisions from being made in "smoke-filled rooms," hidden from public scrutiny. "This is not a no-speech case. I know that is how you want to frame it," he told Enoch. "This is just a regulation on where and how the speech is going to occur."

"The statute seems to say you can speak as much as you want ... as long as everyone can hear you," Judge Emilio Garza said.

The lawsuit, filed in 2009, follows a legal challenge by former Alpine City Council members. Their case eventually was dismissed because they left office, but a new group of officials revived the lawsuit. U.S. District Judge Rob Junell ruled against them last year.

The state law is supported by media organizations including Hearst Corp., which owns the Houston Chronicle and the San Antonio Express-News.